Unlike 2016 when all the polls were wrong, the 2018 midterms turned out mostly as predicted—the House of Representatives flipped to Democratic control, and the Senate remained in Republican hands, with the Republicans likely expanding their majority. Though it is too soon to tell exactly what the divided Congress will mean on every issue and for every committee, with the help of VCIA’s Washington advisors, Capitol Counsel, here are some thoughts on how this all impacts the captive insurance industry.

November was dominated by party leadership elections and policy negotiations behind closed doors on outstanding issues. The most pressing order of business for the lame duck is appropriations. The Continuing Resolution (CR) funding many government functions is set to expire on December 7. After leadership elections, negotiations on government funding should continue; however, these negotiations will be contentious since President Trump has said he will not sign an appropriations bill without funding for “the wall,” and Democrats have adamantly opposed significant wall funding. Several authorizations are set to expire during the lame duck session and require action from Congress. Given the flip of House control, clean, short-term extensions may be the most likely path as the new House Democratic majority may choose to fight on more favorable ground next year.

With the leadership elections in November, and after some handwringing, Democratic Leader Nancy Pelosi (D-CA) retained her position and looks set to take the gavel as Speaker in January. In the Senate, though the Republicans retain the majority, Sen. Elizabeth Warren (D-MA) will likely remain on the Banking Committee and will remain a voice on the left on all issues financial services. Though they may not be able to pass any bills on these issues in a Republican-controlled House, we expect their messages to be echoed by future-Chair of the Financial Services Committee Rep. Maxine Waters (D-CA) in the House, meaning a continued spotlight on these issues.

Although Rep. Waters does not have a stated position on the captive insurance industry one way or the other, it is most likely she will defer to the NAIC on most issues that impact insurance.  She is the polar opposite of the current Chairman, Rep. Jeb Hensarling (R-TX). She is active on financial consumer issues and has been highly critical of the Trump administration for rolling back consumer protection, however, she is also seen as a dealmaker, and so it is unclear if she will govern the committee to the left, or if she will moderate and move to the center as Chairman.

There are a number of insurance-related issues that may see action next Congress.  The captive insurance industry is hopeful that Congress will ultimately pass the Captive Insurers Clarification Act, originally introduced by Senator Patrick Leahy (D-VT) and Senator Lindsay Graham (R-SC) to amend the Nonadmitted and Reinsurance Reform Act (NRRA), which was intended to streamline the regulation and taxation of surplus lines insurance. Some of the definitions in the Act are so broad that questions have been raised about its effect on captive insurance. If captive insurance is considered “nonadmitted insurance” under the NRRA, captive insureds may be required to pay a premium tax to their home state in addition to their captives paying domiciliary state premium taxes, and be partially regulated by, the insured’s “home state.”

As Congress comes back to town, it is clear that there will be significant action in both the lame duck and in the next Congress on many areas of importance to the captive insurance industry. Even with divided government, there are issues that must be addressed such as government funding and expiring authorizations, and there are areas where there could be bipartisan agreement.  So, while much has changed as a result of the election, the work of Congress and the administration will continue. As we have learned over the past two years, Washington, D.C. is full of surprises. There will likely be issues that arise that we could not predict, and how President Trump positions himself and the administration in the next two years will be important. If the President chooses to work with House Democrats on areas of interest, following the populist tone he has sometimes taken, we could see more compromise and agreement than expected – let’s hope so.

I look forward to hearing from you!

Rich Smith
VCIA President